Kimathi and Others v The Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STEWART,Mr Justice Stewart |
| Judgment Date | 02 August 2018 |
| Neutral Citation | [2018] EWHC 2066 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X02162 |
| Date | 02 August 2018 |
[2018] EWHC 2066 (QB)
THE HON Mr Justice Stewart
Case No: HQ13X02162
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Simon Myerson QC, Mr Bryan CoxQC, Mr Andrew HaslamQC, Ms Mary Ruck, Ms Lorraine Mensah, Mr Stephen Flint, Ms Sophie MitchellandMs Louise Cowen (instructed by Tandem Law) for the Claimants
Mr Guy Mansfield QC, Mr Neil BlockQC, Ms Clare Brown, Mr Niazi Fetto, Mr Simon Murray, Mr Mathew Gullick, Mr Richard Wheeler, Mr Jack HolbornandMr Stephen Kosmin (instructed by Government Legal Department) for the Defendant
Hearing dates: 19–22 June 2018, 25–29 June 2018, 2 August 2018.
Judgment Approved
Introduction
This Test Claimant is the first to be the subject of final submissions. I will refer to him, and to subsequent Test Claimants, as “TC”, followed by their number. This is for ease of reference. It implies no discourtesy to him. He is subject to an anonymity order.
TC34 has provided two witness statements, the first dated 27 October 2014 and the second 30 March 2016. He gave evidence in person on 22 July 2016.
There is a brief Glossary attached to this judgment. This contains abbreviated terms and short descriptions of previous judgments given by me in this litigation. Although they are explained the first time they appear, the Glossary enables the reader to have a readily available checklist. The abbreviations and terms used in the Glossary will be used without further explanation in future judgments in the case.
There are also some ‘Caselines’ references. These are to pages in an electronic document management system used in the litigation.
Background
This case concerns allegations of abuse by persons for whose conduct it is alleged the Defendant is liable, arising out of the Kenyan Emergency.
On 20 October 1952 the Governor of Kenya, Sir Evelyn Baring, proclaimed a State of Emergency throughout the Colony and Protectorate of Kenya. In a short statement dated 20 October 1952, but not for publication before 00:30 hours BST on 21 October 1952, the Colonial Office Information Department said:
“A state of emergency was declared in Kenya tonight (Monday, October 20, 1952) throughout the Colony and Protectorate of Kenya. This action has been taken to enable the police to detain the persons believed to have been mainly responsible for organising disorder and lawlessness in the Colony during recent months.
Whereas previously Mau Mau perpetrated their crimes at night and by stealth, the situation became progressively worse during September and early October. The assassination of one of the most revered African chiefs, Senior Chief Waruhiu, on the High Road – in broad daylight – shows the length to which the Mau Mau are prepared to go to carry their campaign of terrorism. It became obvious that action must be taken to detain the persons who are behind this organisation but the measures could not be put into operation until adequate forces were available to maintain law and order and to discourage outbreaks of violence by Mau Mau supporters. The timing of the operation was therefore arranged to coincide with the arrival of troops (from the Middle East and from Uganda and Tanganyika).
This step has been taken with great reluctance but there was no alternative in the face of mounting lawlessness, violence and disorder in a part of the Colony.”
On 12 January 1960 the State of Emergency ended. Two constitutional conferences took place in London in 1960 and 1962 and, after elections leading to Jomo Kenyatta being invested as Kenya's first Prime Minister on 1 June 1963, Kenya became independent from Britain as a constitutional monarchy on 12 December 1963. On 12 December 1964 Kenya became a republic with Jomo Kenyatta as the first President.
Mr. Myerson QC mentioned some matters which he said assist in the general background of the determination of TC34's claim. I shall now set out a summary of what he said.
Until the Anvil operation in Nairobi in April 1954 detainees were split into: (i) those charged with criminal offences who would be taken to court and tried in the usual way, or (ii) those who were arrested and categorised as not Mau Mau (categorised as white/light grey) who were sent back to the reserves, or (iii) a small category against whom there was no admissible evidence but who were thought to be implicated in the Mau Mau. They were made the subject of Governor's Detention Orders (GDOs).
After Anvil the position changed. Over 30,000 people had been picked up. They could not all be sent back to Nairobi because that would negate the point of the exercise. They could not be sent back to the reserves because there were too many of them, and the loyalists in the reserves understandably objected that it did not help to transfer the problem from Nairobi to the reserves.
Therefore, Delegated Detention Orders (DDOs) were brought in. These permitted the Governor to delegate to the Provincial Commissioner (PC) or the District Commissioner (DC) the power to detain without trial.
First, those who had been arrested were screened. They went through various camps, the “pipeline” 1, until ultimately, they were regarded as fit for release or they ended up in a sort of internal exile in Hola, which TC34 says he did. This was for people who were regarded as very dangerous and could not be released to normal life in Kenya.
An important part of the system was grading detainees. The initial grading system was white, grey and black — black being those who were regarded as the most dangerous. Over time this changed to classification by letter. The equivalent of black was then “Z”.
Mr. Myerson said that by “screening” different things were meant, namely:
i) Interrogation such as TC34 describes 2. That meant that if someone was caught who was suspected of having current information, the Army wanted to know it so as to conduct military operations against Mau Mau gangs.
ii) Screening by the administration so as to assess the detainee's role with the Mau Mau.
iii) Screening at the point when it was expected to be able to liberate the detainee.
The Mutua Case
The first claim made in the United Kingdom was commenced in 2009 by Leigh Day, Solicitors. There were 5 Claimants. That claim resulted in two Judgments given by McCombe J (as he then was). In the first 3 the learned Judge refused the Defendant's application to strike out the claim on the basis that no claim could properly be brought against the UK government. Of course, the procedural principles governing striking out a case are very different from deciding an issue at trial. This point is still a live one in the present proceedings and I have heard evidence and some argument upon it. It is not yet to be determined, and will fall for consideration when I hear final submissions on generic issues. The second Mutua Judgment 4 decided limitation as a preliminary issue. The only matter before the court was whether the discretion under Section 33 of the Limitation Act 1980 should be exercised in the Claimants' favour.
By that time, Mr. Mutua had discontinued his claim. The Judge ruled in favour of 3 Claimants and against one Claimant 5.There are many differences between the Mutua litigation and the present litigation. Some important ones are:
• Mutua was not Group Litigation within the meaning of CPR Part 19.
• The only allegations against the Defendant were of deliberately inflicted injuries by perpetrators in circumstances where it was said the Defendant was liable for those acts. The Claimants in the present case brought claims on a much wider range of alleged tortious behaviour.
• The Claimants in Mutua did not rely on Section 32 of the Limitation Act 1980. The present Claimants did so. I ruled against them in May 2018 6. The effect of my previous judgments in this case is that there now remain, as was always the case in Mutua, allegations only of trespass to the person, i.e. batteries.
• In respect of the 3 Claimants who succeeded in Mutua, at the outset of the cross examination on the Section 33 preliminary issue:
“Mr. Mansfield QC for the Defendant stated expressly that the Defendant did not dispute that he or she had suffered torture and other mistreatment at the hands of the Colonial Administration (my emphasis). There remains, therefore, no outstanding issue as to the fact of those Claimant's injuries and the manner of their infliction, although legal responsibility on the part of Her Majesty's Government in the United Kingdom remains hotly contested. While Mr. Mansfield maintains certain points as to inconsistencies in certain parts of the Claimant's accounts (which may go to other issues in the case, such as the status of the perpetrator of the injury in question and therefore the Defendant's potential responsibility in Law for his actions), the substance of what happened to these 3 Claimants is no longer in dispute.” 7
• The Defendant has made no such admissions in the present litigation. This is a very important distinction between the two cases.
• As I have mentioned, in Mutua, limitation was heard as a preliminary issue. The Defendant applied in the present proceedings for me to do the same. The Claimants objected. I ruled in the Claimants' favour 8. Subsequently, the Defendant has stated in open court on more than one occasion that it considers in retrospect that I was right so to rule.
What happened after the second Mutua judgment is best encapsulated in the statement by the then Foreign Secretary, The Rt. Hon. William Hague, made to Parliament on 6 June 2013. I shall reproduce it in full:
“With permission, Mr Speaker, I would like to make a statement on a legal settlement that the Government has reached concerning the...
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